key to the study guide - Name

Customary law part
of culture
Customary marriages
also part of
tradition
Problem: elements
of culture discriminate
against women
230
consequences as from the date of the marriage, and that the provisions of
section 10(2) should apply as from the date of the conclusion of the civil
marriage.
ACTIVITY
In terms of the Recognition of Customary Marriages Act not all customary
marriages can be changed into civil marriages. Explain.
FEEDBACK
In terms of the Act, a couple in a monogamous customary marriage can
change their marriage to a civil one. However, this is not possible for
couples in a polygamous customary marriage.
8 THE CONSTITUTION AND CUSTOMARY MARRIAGES
The constitutional arguments for and against the recognition of customary
marriages are discussed on pages 208±211 of the textbook. You will see
that the constitutional values of culture and gender equality are relevant
in this regard.
Regarding the value of culture, you must note the provisions of sections
9(3), 9(4), 30 and 31(1) of the Constitution. Customary law is clearly part
of culture.
You will further see that customary marriages are also part of tradition, to
which recognition is given by of section 15(3) of the Constitution. Note,
however, that the provisions of section 15(3) are also subject to the
qualification that legislation which might recognise traditional marriages
or systems of traditional law of persons and family law, may not be
inconsistent with the other provisions of the Constitution.
The problem is, however, that some aspects of customary culture and
tradition, namely polygyny and the payment of lobolo, allegedly violate the
right to equality and women's right to dignity. The possible inequality and
lack of dignity inherent in these aspects are consecutively discussed in your
textbook on pages 209±210. If it is concluded that these two aspects
indeed infringe upon gender equality and the right to dignity it could be
argued that customary marriages should not be recognised. Also, some
customary wives still have an inferior legal status, which clearly violates
the right to equality and the right to dignity.